Case 1:17-cv-02581 Document 1 Filed 04/11/17 Page 1 of 23 LEE LITIGATION GROUP, PLLC C.K. Lee (CL 4086) Anne Seelig (AS 3976) 30 East 39th Street, Second Floor New York, NY 10016 Tel.: 212-465-1188 Fax: 212-465-1181 Attorneys for Plaintiff and the Class UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PHILLIP SULLIVAN JR, on behalf of himself and all others similarly situated, Case No.: Plaintiff, CLASS ACTION COMPLAINT -against- VOX MEDIA, INC., Defendant, Plaintiff, PHILLIP SULLIVAN JR (hereinafter, “Plaintiff”), on behalf of himself and others similarly situated, by and through his undersigned attorney, hereby files this Class Action Complaint against Defendant, VOX MEDIA, INC., and states as follows: INTRODUCTION 1. This class action seeks to put an end to systemic civil rights violations committed by Defendant VOX MEDIA, INC. (hereafter collectively as “Vox” or “Defendant”), against the deaf and hard of hearing individuals in New York State and across the United States. Defendant is denying the deaf and hard of hearing individuals throughout the United States equal access to the goods and services Vox provides to non-disabled individuals through http://www.vox.com (hereafter “Vox.com” or “the website”). Vox.com provides to the public Case 1:17-cv-02581 Document 1 Filed 04/11/17 Page 2 of 23 a wide array of the goods, services, employment opportunities and other programs offered by Vox. Yet, Vox.com contains access barriers that make it difficult, if not impossible, for deaf and hard of hearing individuals to use the website. In fact, the access barriers make it impossible for deaf and hard of hearing users to comprehend the audio portion of videos that are posted on Vox.com. Vox thus excludes the deaf and hard of hearing from the full and equal participation in the growing Internet economy that is increasingly a fundamental part of the common marketplace and daily living. In the wave of technological advances in recent years, assistive technology is becoming an increasingly prominent part of everyday life, allowing deaf and hard of hearing people to fully and independently access a variety of services, including accessing online videos. 2. Plaintiff Philip Sullivan Jr, who currently lives in New York City, is a deaf and hard of hearing individual. He brings this civil rights class action against Defendant for failing to design, construct, and/or own or operate a website that is fully accessible to, and independently usable by, deaf and hard of hearing people. 3. Approximately 36 million people in the United States are deaf or hard of hearing. Many of these individuals require captioning to meaningfully comprehend the audio portion of video content. Just as buildings without ramps bar people who use wheelchairs, video content without captions excludes deaf and hard of hearing individuals. Closed captioning is a viewer activated system that displays text on, for instance, online videos, television programming, or DVD movies. This is different from open captioning or subtitles, which are burned into the video file and automatically displayed for everyone to see, such as subtitles in foreign language movies. With closed captioning, deaf and hard of hearing individuals have the opportunity to watch videos by reading the captioned text. 2 Case 1:17-cv-02581 Document 1 Filed 04/11/17 Page 3 of 23 4. Deaf and hard of hearing people watch videos just as sighted people do. The lack of closed captioning means that deaf and hard of hearing people are excluded from the rapidly expanding internet media industry and from independently accessing videos posted on Vox.com. 5. Despite readily available accessible technology, such as the technology in use at other heavily trafficked websites, which makes use of closed captioning for hearing impaired individuals, such as YouTube and Netflix, Defendant has chosen to post videos without closed captioning that are inaccessible to deaf and hard of hearing individuals. Without closed captioning, deaf and hard of hearing people cannot comprehend the audio portion of the videos on Vox.com. 6. By failing to make the website accessible to deaf and hard of hearing persons, Defendant is violating basic equal access requirements under both state and federal law. 7. Congress provided a clear and national mandate for the elimination of discrimination against individuals with disabilities when it enacted the Americans with Disabilities Act. Such discrimination includes barriers to full integration, independent living, and equal opportunity for persons with disabilities, including those barriers created by websites and other public accommodations that are inaccessible to deaf and hard of hearing individuals. Similarly, New York state law requires places of public accommodation to ensure access to goods, services and facilities by making reasonable accommodations for persons with disabilities. 8. Plaintiff browsed and intended to watch the videos on Vox’s website. However, unless Defendant remedies the numerous access barriers on the website, Plaintiff and Class members will continue to be unable to independently watch videos on Vox.com. 3 Case 1:17-cv-02581 Document 1 Filed 04/11/17 Page 4 of 23 9. This complaint seeks declaratory and injunctive relief to correct Vox’s policies and practices to include measures necessary to ensure compliance with federal and state law and to include monitoring of such measures, to update and remove accessibility barriers on Vox.com so that Plaintiff and the proposed Class and Subclass individuals who are deaf and hard of hearing will be able to independently and privately view videos posted on Defendant’s website. This complaint also seeks compensatory damages to compensate Class members for having been subjected to unlawful discrimination. JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction of this action pursuant to: a. 28 U.S.C. § 1331 and 42 U.S.C. § 12188, for Plaintiff’s claims arising under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq., (“ADA”); and b. 28 U.S.C. § 1332, because this is a class action, as defined by 28 U.S.C § 1332(d)(1)(B), in which a member of the putative class is a citizen of a different state than Defendant, and the amount in controversy exceeds the sum or value of $5,000,000, excluding interest and costs. See 28 U.S.C. § 1332(d)(2). 11. This Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367, over Plaintiff’s pendent claims under the New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law § 290 et seq.) and the New York City Human Rights Law, N.Y.C. Administrative Code § 8-101 et seq. (“City law”). 12. Venue is proper in the Southern District of New York pursuant to 28 U.S.C. §§ 1391(b)-(c) and 1441(a). 4 Case 1:17-cv-02581 Document 1 Filed 04/11/17 Page 5 of 23 13. Defendant is registered to do business in New York State and has been doing business in New York State, including the Southern District of New York. Defendant also runs Vox.com, which provides social news, political reports, entertainment and video. Defendant has been and is committing the acts alleged herein in the Southern District of New York, has been and is violating the rights of consumers in the Southern District of New York, and has been and is causing injury to consumers in the Southern District of New York. A substantial part of the acts and omissions giving rise to Plaintiff’s claims have occurred in the Southern District of New York. Specifically, Plaintiff attempted to watch the videos on Defendant’s website Vox.com in New York County. PARTIES 14. Plaintiff, PHILLIP SULLIVAN JR, is and has been at all times material hereto a resident of New York County, New York. 15. Plaintiff PHILLIP SULLIVAN JR is legally deaf and a member of a protected class under the ADA, 42 U.S.C. § 12102(1)-(2), the regulations implementing the ADA set forth at 28 CFR §§ 36.101 et seq., the New York State Human Rights Law and the New York City Human Rights Law. Plaintiff SULLIVAN cannot access the audio portion of a video without the assistance of closed captioning. Plaintiff SULLIVAN has been denied the full enjoyment of the facilities, goods and services of Vox.com, as a result of accessibility barriers on Vox.com. Most recently in March 2016, Plaintiff SULLIVAN attempted to watch the video “Watch how a dictionary writer defines English” on Vox.com but could not apprehend the content of the videos due to the lack of closed captioning. The inaccessibility of Vox.com has deterred him and Class members from watching videos on Vox.com. 5 Case 1:17-cv-02581 Document 1 Filed 04/11/17 Page 6 of 23 16. Defendant VOX MEDIA, INC. is an American for-profit corporation organized under the laws of Delaware, with process of service address at 80 STATE STREET, ALBANY, NEW YORK 12207-2543. 17. The failure of Vox to provide equal access to millions of deaf and hard of hearing individuals violates the mandate of the ADA to provide “full and equal enjoyment” of a public accommodation’s goods, services, facilities, and privileges. Places of public accommodation include, “place[s] of exhibition and entertainment,” “places[s] of recreation,” and “service establishments.” 28 C.F.R. § 36.201 (a); 42 U.S.C. §12181 (7). Because Defendant’s website Vox.com is a “place of public accommodation,” denial of equal access to the videos available to hearing individuals violates the ADA. Remedying that violation is critical to the ADA’s goal of providing people with disabilities the same access that others take for granted.